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At 04:35 PM 8/26/98 -0700, you wrote: >Kim Flint [mailto:kflint@chromatic.com] put forth: > >> An example of fair use is right in front of you. Stephen used >> a portion of a published work of Motley's, verbatim, for the purpose of >> commenting on it. Motley had used another's published work before that, >in his >> post, also verbatim. I'm now "sampling" both of you and reusing your >> work... Somebody will undoubtedly reuse my creative work >> as a part of subsequent comments. In no case did anyone seek >> permission from the publisher of the various pieces before doing this. >And >> they don't have to, because of Fair Use. > >I think that's a real stretch though, and not a good example. For >instance, >none of us are at any point contracted to produce anything for this >newsletter, and as a consequence the Fair Use principle only applies to >the >free exchange here. It can be easily argued that the purpose of inclusion >of each other's writings is to reply to it in a concise and contextually >accurate manner, to say nothing of being just understood. Well, first off, contractors practically never have rights to their work. That's usually stipulated in the contract. So if anyone were to be contracted to post here, the copyright would belong to the one granting the contract, not the author. And anyway, copyright is not necessarily about money. When you post something on the internet, you are indeed publishing your work, copyright you. Whether money is involved or not doesn't matter, there is still a copyright. And as such, all rules of copyright and fair use still apply. You do have limited rights to control how that work is used by someone else. It doesn't matter if money is involved or not. There are many other reasons why you might want to control the reproduction of your work besides money.... I brought up this example, and I think it is a good one, because it shows how we are involved in copyright and fair use all of the time. And in this case we take it completely for granted, and don't see any problem with others using portions of our work in order to add to the flow of ideas and create a new work. It's an example of fair use that we accept without much question, even when we totally disagree with the way our creations are sometimes used by others. So long as they don't take the whole thing, put their name at the top in place of yours, and reproduce it somewhere else, we are fine with this. So how come when the same thing is done with music, you don't think the same rules and laws apply? They apply in every other type of media. Using a portion of one work in the process of creating a new work is an acceptable and common practice, so long as the requirements in the Fair Use portion of the copyright laws are met. Why should music be any different than anything else? I personally fail to see the distinction. > >On the other hand, If someone went and got paid to perform a piece whereby >sections of this newsletter were read aloud, that would muddy up this >argument a good deal. And this distinction, I think, is the basic seed of >the sampling problem with respect to copyright. Your copyright protects you if the person reuses the published work exactly as you published it, without creating an original work in the process. Fair use provides a number of tests to legally determine whether or not this is the case. You would have to prove in court that this use fails those tests. (for example, you would have to prove that your ability to earn from your work was reduced by this particular reuse, and you would likely have to show by how much. Or you would have to prove that your work was not being used as the basis for some commentary, parody, etc.) If the person does meet the tests for fair use of your work in the creation of a new work, and they get paid for it, they don't owe you anything. That's the law, and there is a large body of legal theory to support and justify that. This is a key point about copyright that differs from things like patents, trademarks, or property, which a lot of people fail to understand. The reason this part of copyright law exists is specifically to encourage the ongoing discussion of ideas and creation of new works, in other words, limiting some of the copyright holder's rights in order to further the common good. It's the balancing part of the law, there to prevent some entity from stifling further creative developments by refusing to allow reuse of a particular published work or making it unreasonably expensive. (That's what Negativland is arguing that the RIAA is doing.) For example, if someone were to quote my words here for a magazine article, which they they sell to a mazazine, who sells it to subscribers with paid advertisements surrounding it, all for nice profits, I get nothing. My words as a supporting bit in an article are being reused so that the author can make some point, and that's fair use. This might bother me, but that's too bad. I can't prevent him from writing or selling the article, and I can't claim any of the profit. (happens every day, witness the current trend for print news to quote usenet posts in all manner of news articles...) However, if the person takes my post, prints it out directly, and sells that in its entirety to the magazine with no other creative work on his part, that's theft. That's when copyright comes into play, and that's when I can go after him and the magazine to get the money I'm owed. Again, I encourage you to actually read the Fair Use clauses, read some of the supporting case work, read up on copyright law, and the various legal arguments surrounding it. It's a complicated subject, easily confused with patent and trademark law, and if you are going to be involved in copyrighting things, you would be wise to have a thorough understanding of what that means. Negativland has the fair use clauses reprinted on their website, while you are there you can actually read their arguments too. They're the reason we're even discussing this (another testament to their skill at media art...) so you might as well see what they have to say. (and I'm not really interested in restating their arguments for them anymore, when they are easily available on their website.) AFTER you have gained some of this knowledge, THEN form opinions and comment. I know it's easy to get that backwards sometimes. >Here's a hopefully better example. I take Robert Plant's >"meh-meh-meh-meh-meh-meh..." from the "Dazed and Confused" track from >Zep's >live album, run it through a flange, a fuzz box, my Quadraverb, and record >it into CoolEdit Pro, whereby I reverse it, now rendering it nearly >unrecognizable to all but the most adept. I assign several seconds of >this >result to one of the RAM banks on my sound card, and use it in several >compositions, which I post on the Internet, and put on a CD for sale. > >Everything is still fairly grey in this regard, all the way up until the >point where money changes hands, and (even more emphatically) I make a >PROFIT from the work. At this point, I owe the folks who own that >recording >of "Dazed and Confused", at least. Actually, I don't think that's true, not according to the principles of fair use anyway. Your usage here would not be infringing on Led Zeppelin's ability to earn money from their published work "Dazed and Confused", and they would hardly be able to prove that anybody in the marketplace would be confused into thinking that your recording was the Led Zeppelin one and buy yours by mistake. When Roy Orbison sued 2 Live Crew for something like this, Roy lost. Unfortunately, that's about the only supporting case out there, so there isn't much precedent available to define the sampling issue better. Without it getting a hearing in the courts, we're left with a lot of vague guidelines. That's why I support Negativland's quest to get themselves sued. Secondly, for copyright, it doesn't matter if you are making a profit or not. It only matters if you publish. The act of publishing, even for no money in return, can have a huge effect on someone else's ability to earn from their work if you are violating their rights. So if you beleive that sampling is a violation of the rights of the artist that recorded it, then by putting this on the internet and selling CD's with it, you have violated Led Zeppelin's right's to this work (by your argument). How about if I call their record company in the morning and let them decide? Got a spare $50,000? :-) kim ________________________________________________________ Kim Flint, MTS 408-752-9284 Chromatic Research kflint@chromatic.com http://www.chromatic.com